Thomas v. Tony's Seafood, Ltd.

633 So. 2d 675, 1993 La. App. LEXIS 3998, 1993 WL 601228
CourtLouisiana Court of Appeal
DecidedDecember 29, 1993
Docket92 CA 2303
StatusPublished
Cited by7 cases

This text of 633 So. 2d 675 (Thomas v. Tony's Seafood, Ltd.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas v. Tony's Seafood, Ltd., 633 So. 2d 675, 1993 La. App. LEXIS 3998, 1993 WL 601228 (La. Ct. App. 1993).

Opinion

633 So.2d 675 (1993)

Gregory THOMAS
v.
TONY'S SEAFOOD, LTD.

No. 92 CA 2303.

Court of Appeal of Louisiana, First Circuit.

December 29, 1993.
Writ Denied March 18, 1994.

*676 Arthur Cobb, Cobb & Cobb, Baton Rouge, for plaintiff-appellant Gregory Thomas.

M. Blake Monrose, Hurlburt, Privat & Monrose, Lafayete, for defendant-appellee Tony's Seafood, Ltd.

Before CARTER, GONZALES and WHIPPLE, JJ.

CARTER, Judge.

This is an appeal from a judgment in a worker's compensation case.

FACTS

On May 7, 1989, while performing his duties as a seafood boiler at Tony's Seafood, Ltd. (Tony's Seafood), plaintiff, Gregory Thomas, suffered an injury to his left shoulder. On that day, Thomas was attempting to move a large barrel of vinegar, when he felt a sudden popping in his shoulder, which was followed by pain.

From May 8, 1989, through at least June 22, 1989, Thomas was treated by Dr. C.A. Martello, a chiropractor. On June 28, 1989, Dr. Jack Loupe, orthopaedic surgeon, began treating Thomas for his shoulder injury. On July 20, 1989, Thomas underwent surgical excision of the distal end of his left clavicle. Thomas subsequently underwent a second surgical procedure for the injury to his shoulder on September 12, 1989.

On November 22, 1989, Dr. Loupe released Thomas to light duty work, noting that Thomas's surgical wound was close to healing. A little more than a month later, on December 29, 1989, Dr. Loupe released Thomas to regular duty work without any restrictions.

Tony's Seafood paid Thomas more than thirty-one weeks of compensation benefits totalling $5,817.39 and paid all medical expenses totalling $11,413.45. However, Thomas's worker's compensation benefits ceased after November 22, 1989.

On October 4, 1990, Thomas filed a Disputed Claim for Compensation against his employer, Tony's Seafood. Trial was held on March 11, 1992. At trial, Thomas claimed that he was entitled to supplemental earnings benefits (SEB), pursuant to LSA-R.S. 23:1221(3), because the injury he suffered while employed at Tony's Seafood resulted in an inability to earn at least ninety percent (90%) of his previous wages.

After trial, counsel for both parties agreed that Thomas's compensation benefits had been miscalculated and that Thomas had been underpaid $52.14 per week or $1,646.06. On June 18, 1992, the hearing officer rendered judgment in favor of Thomas "in so far as his weekly indemnity benefits were miscalculated." The judgment, rendered in favor of Tony's Seafood in all other respects, denied all other claims by Thomas.

From this adverse judgment, Thomas appealed, assigning the following specifications of error:[1]

1. The trial court erred in not giving greater weight to the testimony of Mr. Thomas and Dr. Finn and in not finding that Greg Thomas is disabled and entitled to compensation benefits.
2. The trial court erred in not finding that Tony's Seafood and its compensation *677 carrier were not arbitrary and capricious in miscalculating and terminating benefits.

WEIGHT GIVEN TO TESTIMONY OF DR. FINN

Thomas contends that the hearing officer erred in not giving greater weight to the testimony of Dr. Thomas Finn.

Generally, the testimony of the treating physician should be given greater weight because his conclusions are based on repeated examinations and sustained observations of the patient. Mazoch v. Employers Casualty Company, 514 So.2d 1184, 1185 (La.App. 1st Cir.1987), writ denied, 517 So.2d 812 (La.1988).

Thomas was first examined by Dr. Thomas Finn, a chiropractor, on October 21, 1991, almost two and one-half years after the work-related accident. Although the record does not include the testimony of Dr. Finn, his reports indicate the nature and extent of Thomas's injury and disability.

In the instant case, assuming that Dr. Finn was a treating physician, we are unable to determine whether the hearing officer gave any greater weight to the reports of Dr. Finn than he did to the testimony of the other physicians who examined and/or treated Thomas. In rendering his decision, the hearing officer simply noted that credibility was a key factor in his determination without further elaboration. Therefore, we cannot say whether or not greater weight was accorded to Dr. Finn's reports.

DISABILITY

In a worker's compensation proceeding, a claimant bears the burden of demonstrating by a preponderance of the evidence that an employment accident resulted in disability. Britton v. Morton Thiokol, Inc., 604 So.2d 130, 134 (La.App. 2nd Cir.1992); Lubom v. L.J. Earnest, Inc., 579 So.2d 1174, 1178 (La. App. 2nd Cir.1991); Moore v. Mason & Dixon Tank Lines, 540 So.2d 525, 528 (La.App. 1st Cir.), writ denied, 541 So.2d 1390 (La. 1989). Proof by a preponderance of the evidence is sufficient when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Lubom v. L.J. Earnest, Inc., 579 So.2d at 1178-79. If the evidence leaves the probabilities evenly balanced or if it shows only a possibility of a work-related event or leaves it to speculation or conjecture, then the plaintiff fails to carry his burden. Dunckelman v. T. Baker Smith & Sons, Inc., 447 So.2d 26, 28 (La.App. 1st Cir.1984).

A claimant's disability is presumed to have resulted from an accident if before the accident he was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves, providing either that there is sufficient medical evidence to show there is a reasonable possibility of causal connection between the accident and the disabling condition, or that the nature of the accident, when combined with other facts of the case, raises a natural inference through human experience that such a causal connection exists. Lubom v. L.J. Earnest, Inc., 579 So.2d at 1179.

The finding of disability within the framework of the worker's compensation law is a legal rather than a purely medical determination. Pollock v. Louisiana Insurance Guaranty Association, 587 So.2d 823, 825 (La. App. 3rd Cir.1991); Manson v. City of Shreveport, 577 So.2d 1167, 1169 (La.App. 2nd Cir.), writ denied, 580 So.2d 928 (La. 1991). Therefore, the question of disability must be determined by reference to the totality of the evidence, including both lay and medical testimony. Moore v. Mason & Dixon Tank Lines, 540 So.2d at 529.

Ultimately, the question of disability is a question of fact. Pollock v. Louisiana Insurance Guaranty Association, 587 So.2d at 825. An appellate court may not set aside a trial court's findings of fact in the absence of manifest error or unless clearly wrong. Stobart v. State, Department of Transportation and Development, 617 So.2d 880, 882 (La. 1993); Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). For an appellate court to reverse a trial court's factual finding, it must find that a reasonable factual basis does not exist for the finding of the trial court and that the record establishes that the finding is clearly *678 wrong. See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987).

Thus, the reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's finding. The reviewing court must review the record, in its entirety, to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Stobart v.

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633 So. 2d 675, 1993 La. App. LEXIS 3998, 1993 WL 601228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-tonys-seafood-ltd-lactapp-1993.